Monday, December 5, 2016

DAPL is Not Dead

Photo by Rob Wilson

Celebratory
drumming and singing rang out from Standing Rock Water Protector
camps when the Army Corps of Engineers denied Energy Transfer
Partnership the easement to drill under the Missouri River just 2,400
feet from the Standing Rock Sioux Reservation, stalling the Dakota
Access Pipeline. Crying people exclaimed, “It’s over.” Joyful
expression is warranted, it is a major triumph against the pipeline
but the tearful heart-songs are wrong, the fight is not over.

The
internet exploded in celebratory headlines, articles, and social
media posts minutes after the pipeline announcement by Jo-Ellen
Darcy, the Army's Assistant Secretary for Civil Works.

The
New York Times chimed in with, “Army Blocks Drilling of Dakota
Access Oil Pipeline.”

Bipartisanreport.com
went even further, “BREAKING: Dakota Access Pipeline IS DEAD, U.S.
Government Says NO WAY (DETAILS)”

The
big problem is – it’s not even close to true.

Stopping
the easement for an environmental impact statement is a lawful way to
stall the development of the pipeline – maybe even for years. An
environmental impact statement is a document requiring a developer to
consider the full spectrum of environmental impacts to the entire
ecological system; including animals, plants, air, water, soil, and
people. It requires meaningful input from the Standing Rock Sioux
tribe for the current route. It can be appealed and revised in full
or in part through layers of legal processes which can tie the
company in red tape for years. It is an effective strategy to use,
but not in this case.

The
likelihood an environmental impact statement will ever happen for the
Dakota Access Pipeline is basically none.

Energy
Transfer Partnership admitted in court documents that it is under
contract to have the Dakota Access Pipeline (DAPL) finished by
January 1, 2017. The contracts, with their buyers, assure Energy
Transfer Partnership 2014 prices. If the pipeline is not finished in
time, the buyers have the right to renegotiate the price of the
crude.

The
average 2014 WTI Crude Oil prices were $93.17 per barrel, and the
projected 2017 price is $49.91 per barrel, according to the United
States U.S. Energy Information Administration Short-Term Energy
Outlook of November 8, 2016. The most conservative estimate is DAPL
will move approximately 470,000 barrels per day, according to Energy
Transfer Partners.

That
is a $20,332,200 loss per day. In a year Energy Transfer Partners
risks losing $7,421,253,000.

The
entire project is expected to cost Energy Transfer Partners $3.8
billion. Should the project die, that entire investment is lost with
no recovery.

Energy
Transfer Partners does not have time to wait, they have to act now.

Litigation
is thefirst
option. Energy Transfer Partners could file for an emergency
injunction or remedy against the Army. Smart lawyers will have
prepared these filings ahead of time. Energy Transfer Partners could
probably get a quick hearing but the process would take weeks, even
for the best lawyers.

Even
if Energy Transfer Partners succeed in court, the Army could appeal
with the tribe’s lawyers acting in support. Unless the court kept
the order to not dig in place during the appeal, DAPL’s dig would
proceed during the appeal.

Using
legal means, mid-December is earliest reasonable estimation Energy
Transfer Partners could start digging lawfully. Even if Energy
Transfer Partners successfully takes legal action, and digs within
the agreed upon methods and times, it would be cutting it close to
get the drill across the river and the pipe laid in time.

Another
choice is to drill illegally. Assuming any fine is less than a couple
of years’ worth of losses of the higher prices of defaulting on the
contract, it would be worth drilling illegally.

And
they could probably get away with it.

The
FAA grounded all non-law enforcement aircraft on November 28,
including drones. Drones are one of the ways the Water Protectors,
people who have mounted months long resistance efforts, monitor the
progress of the pipeline, track the progress of the pipeline and
monitor police behavior. Drone operators risk revocation of their
drone pilot’s license and hefty fines if they fly over the
pipeline.

Even
though the FAA has no legal right to determine the legitimacy of any
news outlet or journalist, the FAA has said they will pre-approve
some journalists to fly over. According to the FAA, no journalists
have met the criteria.

The
distance between the Water Protectors and DAPL’s work-site is less
than 3,000 feet. However, there are guarded barricades, hundreds of
police, the National Guard, a walled fortress and dozens of lights.
DAPL security has used attack dogs to bite Water Protectors,
including pregnant women and a child, when they entered DAPL secured
areas.

On
November 20, Water Protectors, the group of people led by the
Standing Rock Sioux, who have built encampments to resist the
development of the pipeline, attempted to move one of the police
barricades so that ambulances could pass to the camp without the
added delay created by the barricade. It was 23 degrees outside.
Police used tear gas, water hoses, rubber bullets, concussion
grenades, bean bags, and pepper spray. One person went into cardiac
arrest, a woman’s arm was nearly blown off, and a woman lost vision
in one eye. In total 26 people were hospitalized and 300 were
injured. The most common injury was hypothermia.

On
November 25, the Army Corps of Engineers ordered an eviction of the
largest Water Protector Camp, Oceti Sakowin, with threats of trespass
charges for anyone who stays after December 5. On November 28, the
North Dakota Governor issued an order stating that all persons must
leave immediately or face trespass charges. The tandem orders make
simply being at the camp a crime, leaving Water Protectors in an even
more tenuous, and dangerous position.

On
October 27 the Sacred Ground Camp was raided by hundreds of police,
armored vehicles, police atvs, helicopters, and planes because the
police classified the camp as a trespass camp. Over 140 people were
arrested. Police used pepper spray, rubber bullets, tasers, bean
bags, tear gas, concussion grenades, batons, and helicopters against
Water Protectors.

On
November 2, Water Protectors attempted to reconsecrate ground which
they believed had been desecrated by police and DAPL. They attempted
to cross onto Turtle Island, a small island behind the largest Water
Protector camp, Oceti Sakowin. When they were mired in the river in
silt up to their knees, police came down the hill and pepper sprayed
them for hours. This was just a day after the Army Corps of Engineers
labeled anyone entering that area trespassers and asked Morton County
Sheriff to enforce trespass laws on that property.

The
incentive to perform an illegal drill is high, the risk of being
caught is low, the consequences are negligible, and anyone trying to
stop them risks death, financial consequence, and risk their
professional advancement.

The
upcoming administration change adds to the incentive to drill
illegally.

President-Elect
Trump has personally invested up to a million dollars in the
pipeline. According to disclosure papers, his investment directly in
Energy Transfer Partners has been sold off but as of last May, he had
invested at least $100,000 in Phillips 66 Corporation, a one quarter
owner of the pipeline.

Kelcy
Warren, the chief executive officer of Energy Transfer Partners has
invested heavily in Trump as well. According to Reuters and the
Guardian, during the general election Kelcy donated the maximum
individual donation allowed $2,700 and donated $100,000 to a Trump
Victory Fund, a fundraising committee for the Trump Campaign, a
collaborative fundraising fun
of
different Republican groups. Since the primary election, he has given
$66,800 to the Republican National Committee. In the primary election
he gave $300 to the Trump campaign. According to the Center for
Responsive Politics, Warren gave $1,530,000 to Republican efforts
during the 2016 elections.

After
Trump’s election, Warren believed DAPL was on better footing. He
said,
“My
God, this [a Trump administration] is going to be refreshing, so I
think, overall, I’m very, very enthusiastic about what’s going to
happen with our country,” said
Warren.

Warren’s
excitement didn’t stop there. He also said, “I believe January
20th or shortly thereafter we will have an easement.”

Warren’s
glee is not just wishful thinking.

In
a memo from Trump to congressional staff and supporters, Trump made
clear he was going to clear the way for pipelines.

According
to the AP who obtained the memo, the memo reads, "[Trump]
intends to cut the bureaucratic red tape put in place by the Obama
administration that has prevented our country from diversifying our
energy portfolio."

Republican
Senator John Hoven from North Dakota said he met with the Trump
transition team and discussed the pipeline.

In
a statement about the meeting Hoven wrote, "Today, Mr. Trump
expressed his support for the Dakota Access Pipeline, which has met
or exceeded all environmental standards set forth by four states and
the Army Corps of Engineers.”

Energy
Transfer Partners is so confident they are moving forward no matter
what the Army Corps of Engineers says, they issued a defiant public
statement after the easement was denied.

“As
stated all along, ETP and SXL are fully committed to ensuring that
this vital project is brought to completion and fully expect to
complete construction of the pipeline without any additional
rerouting in and around Lake Oahe. Nothing this Administration has
done today changes that in any way.”

Any
illegal activity will not be investigated exclusively by the Obama
Administration. It will eventually be handed off to the Trump
administration. Trump’s support for DAPL has been clear and it
seems improbable that Trump’s administration will bring any charges
against Energy Transfer Partners for doing anything they would have
allowed them to do legally 23 days later.

The
last option for Energy Transfer Partners is to wait for the Trump
administration. It may be able to negotiate a delay or diminished
drop in the crude oil price if the delay is only a few days. This is
a big risk for the company to take.

For
Trump to act to approve DAPL, he would be acting against the Army and
the Army’s legal duty to the Missouri River under Pick-Sloan.
Pick-Sloan was a piece of legislation which created a series of dams,
levees, and floodplains along the Missouri River. It gives The Army
Corps of Engineers the stewardship authority for things like
infrastructure under the Missouri River.

For
Trump to take action in favor of DAPL, he would have to counteract
Pick-Sloan and the act directly against the Army. This may be in
Trump’s character, but it is not a certainty.

With
little expedient lawful recourse, Energy Transfer Partners are forced
to consider the illegal. Once they choose a course of illegal
behavior, the only way to protect themselves is with violence in
order to stop anyone who resists them. Either violence by the police
or violence by contractors.

Denying
the easement under the Missouri River was a huge shift toward the
Water Protectors’ goal of stopping the pipeline but it is not the
end. Energy Transfer Partners has to start playing hardball.

Thinking
this conflict is over is a mistake. Should the camps pack up and go
home, the pipeline will go through as the cars roll away.